Gardner v. State

• Decision Date: 12 January 1979
• Docket Number: No. 494,494
• Citation: 396 A.2d 303,41 Md.App. 187
• Parties: Roger Edward GARDNER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 187

41 Md.App. 187

396 A.2d 303

Roger Edward GARDNER v. STATE of Maryland.

No. 494.

Court of Special Appeals of Maryland.

Jan. 12, 1979.

David Freishtat, Baltimore, with whom were Freishtat & Schwartz, Baltimore, on the brief, for appellant.

Deborah K. Handel, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E Wehland, State's Atty. for Howard County, Ronald L. Spahn, Deputy State's Atty., and David M. Thomas, Asst. State's Atty's. for Howard County, on the brief, for appellee.

Argued before MOORE, LOWE and MELVIN, JJ.

LOWE, Judge.

-the hobgoblin- ¹

Over a hundred years ago, Stephen's General View of Criminal Law pointed out that the law of conspiracy is the most complete illustration of the fiction consisting of treating as a crime, not the very acts which are intended to be permeated, but certain ways of doing them. Fitz.St. 62. Because the gist of the offense of conspiracy is the Combination which is formed for an unlawful purpose, the impossibility of one person forming a combination with himself is too obvious for discussion.

Applying that premise, it would seem "logically" to follow that where one of two supposed confederates merely feigns acquiescence without criminal intent, the other party cannot be guilty of conspiracy since there is no second party with whom he could culpably conspire. See Regle v. State, 9 Md.App. 346, 355, 264 A.2d 119 (1970). That would seem a "logical" extension of a rule; but as we are too often wont in the law, the original "two to tango" maxim rings So "logically" that it is applied as stare decisis rather than recognized for the stare dictis that it is.

We have extended that supposition to everything that seemed "logically" to follow from it. So hide-bound did it become that in hoary texts can be found an example that because a man and wife are considered one person, they cannot be considered as conspirators between themselves; ² nor has that particular fiction been altogether abrogated by the passage of time. ³ See Dawson v. United States, 10 F.2d 106, 107 (9 Cir. 1926).

Laboring under the assumption that the law is necessarily "logical," this need for at least two guilty minds to combine in order to conspire, was forged into a rule, the "rule of consistency" an euphemism that, in a judicial system that relies for its stability upon consistency, further solidified the rule it described. As our Court has heretofore described the rule of conspiratorial consistency, it holds that:

"(O)ne defendant in a prosecution for conspiracy cannot be convicted where all of his alleged co-conspirators, be they one or more, have been acquitted or discharged under circumstances that amount to an acquittal." Regle v. State, 9 Md.App. at 351, 264 A.2d at 122.

Without stating that law is not always "logical," we premised our reasoning in applying that rule upon the rationale that:

"(I)t is illogical to acquit all but one of a purported partnership in crime; that acquittal of all persons with whom a defendant is alleged to have conspired is repugnant to the existence of the requisite corrupt agreement; and that regardless of the criminal animus of the one defendant, there must be someone with whom he confected his corrupt agreement, and where all his alleged co-conspirators are not guilty, a like finding as to him must be made." Id. at 351-352, 264 A.2d at 122.

We noted that some common sense has crept into the inconsistency bar to conviction. The rule does not apply to mere Procedural impossibility of conviction of co-conspirators, but rather requires their acquittal. The conviction of a single conspirator in a conspiracy case where all co-conspirators were: 1) granted immunity, Hurwitz v. State, 200 Md. 578, 92 A.2d 575 (1952); 2) enjoyed diplomatic immunity, Farnsworth v. Zerbst, 98 F.2d 541 (5th Cir. 1938); 3) unknown to the prosecution, Adams v. State, 202 Md. 455, 97 A.2d 281 (1953); 4) granted a consensual nolle prosequi, Greathouse v. State, 5 Md.App. 675, 249 A.2d 207 (1969), Cert. denied, 253 Md. 734 (1969); or, 5) dead or unapprehended, State v. Tom, 13 N.C. 569, 575 (1830) citing Rex v. Kinnersly, 1 Str. 193 and Rex v. Niccolls, 2 Str. 1227, see Perkins, Supra, is not precluded as it might be if all co-conspirators were adjudicated innocent. Such procedural impossibilities do not act as a bar to the conviction of the remaining conspirator.

Despite our recognition of those limitations we stretched the consistency rule a step farther in Regle. Based upon another legal fiction that an insane person is incapable of forming a criminal intent, Bradford v. State, 234 Md. 505, 512-514, 200 A.2d 150 (1964) we held:

"(W)here only two persons are implicated in a conspiracy, and one is shown to have been insane at the time the agreement was concluded, and hence totally incapable of committing any crime, there is no punishable criminal conspiracy, the requisite joint criminal intent being absent." Regle v. State, 9 Md.App. at 355, 264 A.2d at 124.

There having been no prior adjudication of the co-conspirator (Fields) in Regle, we remanded for retrial with the following directive:

"We thus deem it essential in the interest of justice that appellant's conspiracy conviction be reversed and that the State be afforded the opportunity to retry the case in light of the principles of law which we consider relevant and controlling. If, upon retrial, the State intends to charge only Fields and appellant as conspirators, and the evidence properly shows that Fields was legally insane at the time the agreement to perpetrate the robbery was concluded, then even though Fields has not been acquitted of the offense of conspiracy by a judicial determination that he was insane, nevertheless the requisite Joint criminal intent being absent, appellant cannot properly be convicted of engaging with Fields in a criminal conspiracy." Id. at 357, 264 A.2d at 125 -the facts-

Appellant in the case at bar relies primarily upon the Regle holding in asking that we reverse his conspiracy conviction as rendered by the Circuit Court for Howard County. The appellant, Roger Edward Gardner, was a murderer for hire who conspired with Ralph Lubow to murder Morton Hollander and Alvin Blum. He conditionally "subcontracted" the Blum "hit" to one Timothy McDonald in the event Hollander's death did not effect the result sought by Lubow. McDonald immediately became a police informant who only feigned acquiescence; thus McDonald lacked the criminal intent necessary to a conspiratorial agreement (See Regle, supra at 355, 264 A.2d 119). Consequently, a joint indictment charged only Gardner and Lubow with conspiring together to murder Hollander and Blum, and no other persons known or unknown were named.

Gardner sought and received a severance. He was tried prior to Lubow and, on December 12, 1977, was convicted by Judge James Macgill of conspiracy and solicitation to murder. In accord with our Kelley v. State, 12 Md.App. 251, 258, 278 A.2d 87, 90 (1971), Cert. denied, 263 Md. 716 (1971), Judge Macgill held that:

"(T)he evidence establishes beyond a reasonable doubt that there was an understanding or a meeting of minds between Mr. Gardner and Mr. Lubow to use a word which has been used, more often than not, in the testimony in this case, 'to hit' these two gentlemen."

Gardner had relied heavily upon the Regle case at trial and placed in issue Lubow's mental competence as his primary defense. ⁴ Gardner's attorney called Lubow to take the stand for the limited purpose of waiving his psychiatrist-patient privilege. Md.Cts. & Jud.Proc.Code Ann. § 9-109(d)(6) (Supp.1978) (effective July 1, 1977). Judge Macgill met the issue of Lubow's competence head on in his opinion. After reviewing the holding of Regle, he addressed the evidence as presented in the case, finding factually that Lubow was capable of the prerequisite criminal intent to participate in a conspiracy with Gardner. Gardner was sentenced on March 21, 1978 to two five year terms for conspiracy and one for solicitation to murder, all to be served concurrently.

Seven months after conviction (but four months after sentencing), Ralph Lubow was found "not guilty" (by reason of insanity) of having conspired with Gardner for the murder of Hollander and Blum. Appellant now calls upon us to reverse his conviction under the Regle holding because of its "repugnant" inconsistency with the Lubow result in order

"to place Lubow's subsequent acquittal within the record, (so that) justice would be best served by addressing through judicial notice the merits of the issue raised by that (Lubow) acquittal." ⁵

Unless we are prepared to rescind our Regle decision, what appears at first blush to be the next logical progression of the consistency rule as extended by Regle would provide an easy answer favorable to appellant. But Regle, like most of our cases, is only authority for what it actually decided. It does not necessarily follow that it can be quoted for a proposition that may seem to follow "logically" from it, as pointed out by Lord Halsbury in Quinn v. Leathern, (1901) A.C. 495, 506. "Such a mode of reasoning assumes that law is a logical code whereas every lawyer must acknowledge that the law is not always logical at all."

As beguiling as such an easy answer would be, we are troubled that the very issue upon Gardner now relies for his release (I. e., Lubow's mental incompetency) formed the heart of Gardner's defense in his own trial, and was fully tried and definitively decided by the Gardner court. Appellant did not object below to the trial proceedings on the insanity issue or to the sufficiency of the evidence upon which Judge Macgill based his finding of sanity. See Md.Rules 1085 and 1086. To the contrary, he promulgated the consideration of that issue. What appears a "logical" extension of the rule of consistency would provide an illogical result.

-the insanity defense-

Undergirding Gardner's contention is the presupposition that...